Union Pacific Sues Athearn & Lionel

Those of us who believe that UP is wrong in their heavy handed licensing program should support Athearn and Lionel in the only ways we can: buy their products; if you know any news reporter types, see if this attempt to impose a tax on model railroaders can be reported in way embarrassing to UP.

Clearly, we have no way to directly influence UP: they simply don't care and likely none of us control enough shipping business to matter. In my opinion, UP is using their size and [compared to Athearn and Lionel] unlimited legal budget to extort a tax from all of us for trademarks used freely for many years. The Lionel comparison is a false analogy: Lionel NEVER allowed their trademarks and symbols to be used by anybody, not nowhere, not no how. UP allowed their marks, and the fallen flag marks to be used everywhere without restriction, and even paid for their use when promoting customer (that is, rail travelers) good will was important to them.

This would be interesting if not so irritating.

Ed

in article snipped-for-privacy@posting.google.com, Arailfan at snipped-for-privacy@post.com wrote on 6/2/04 10:13 AM:

work one way I guess!< Well I thought it was about products. UP is not in the model train business and the last time I hear Lionel didn't make any full scale engines and is not in the freight hauling business!

UP _could_ lose a big one here! If the courts decide the trademark pertains to the product. If one does a search on trademark most/all of the suits pertain to same/similar products.

I think the law is on the side of Union Pacific. With recent new ownership of Athearn, they may rethink their stance on this issues. As for Lionel... who knows?

Good for Athearn! They are standing up for all of us, in this case. Now I have some respect for them, even though I'm not pleased with their policies on distribution. UP may have some claim for their new emblems, but since they weren't protecting CNW, MP, MKT etc. names they shouldn't ask for licencing agreements for them.

"Good for Athearn!" WHAT? you want to support a company that is breaking a copyright law? I am for UP on this one, Escpecially on their NEW logos and campaigns. As for the fallen flag trademarks, that will have to be determined if they are still entact.

I have another interesting question. Supposed they pulled a judge that was a model railroader. Could they request he requse(sp) himself because of that?

copyright law?< It's not a copyright case, please read more carefully!

Is it possible this was necessary to use all the fallen flags. The fed has already denied UP the re-registration on some of the fallen flags. Could Lionel and others simply be using the court to say OK you can defend your current trademarks but all those that have gone undefended for 40/60 years you don't have any control over. This would certainly put to bed _all_ RR's (not just UP) claims to fallen flags that were never defended. UP ends up with a couple of current logos and sayings!

I doubt it -- since Union Pacific filed the lawsuit against Lionel and Athearn, not vice versa.

Athearn, not vice versa.< Granted, but _supposedly_ Lionel also has a current lawsuit going on with MTH about the sound issue (QSI decoders in their current line of HO engines)! Supposedly Lionel _baited_ MTH to start the suit. Is it possible the lawyer/s sit down and discuss outcomes and decide to "let them sue" and a good outcomes for us would be ************!

As the singer (is it Neal Diamond) has a good chunk of Lionel ownership (stock?) I would assume he would be very sensitive to copyright (not what's happening here of course) but still he would have certain feeling about these things. If they decided to let UP sue (and I'm sure that was a precise decision) they must feel they have a reasonable case. It appears that these companies (Lionel, Athearn, etc.) want the other party to start the suit. Is there a reason for that?

It's Neil Young (sans Crazy Horse). There was no way for Lionel, Athearn et al to sue Onion Pathetic. They were going about their business, not paying the fees, and therefore unharmed by the whole thing. Only if they paid the fees, like Kato, could they sue, and then only for the amount of the fees, which wouldn't make much of a lawsuit in todays world.

But if they just sat back, kept producing models as usual and waited for the big nasty guys UP in Omaha to come after them, most likely asking for damages in addition to the fees, then they are defending themselves and can pull out all the stops.

Regards,

DAve

No Will. The point, according to them, is that they are NOT breaking any law, and that UP's claims are spurious. That is the whole issue here. A law is not a law simply because some big wealthy corporation says it is. This is the way these things are decided. It is the way our system works. You may make claims all you want, but then you are required to support them in a court of law when they are challenged. The challengers are claiming that UP has no right to lay claim to and extract tribute from the use of these items. It is incumbent upon Union Pacific to either defend their claim or cede it. It is NOT necessary for Athearn or any other model railroad manufacturer to sue Union Pacific. Once this goes into the courts, Union Pacific can only own these items if a court of law allows it. If the court denies UP's claim then they must forever cease and desist from attempting to require licensing and/or fees for the use of them. Again, that is the whole issue here.

A thing is not true simply because I cannot prove it to be false. It is only true if you can prove it to be so. I do not have to do anything other than demand that you provide proof. If you cannot, then your claim is dismissed. That is the way the whole sane world operates. It is incumbent upon the claimant to defend all claims.

If no one ever challenges the claim, the law will never intervene.

Captain Handbrake

On Wed, 02 Jun 2004 17:35:50 GMT, "Edward A. Oates" purred:

They aren't trying to "tax" model railroaders. they are simply trying to protect their trademarks. People whine this is unfair but would be enraged if someone stole something from them and these companies trademarks are as much their property as your car is yours.. How would you like it if someone took your car, drove like a maniac, made a fool of themselves mooning etc., and to all who saw it it appeared you were the one in the car? That is effectively what happens when someone uses a company trademark without permission. Their symbol has value, a value they have worked hard to imbue it with, so they deserve recompense when others use it for profit. Why have they just started to enforce licensing? Because recent goings on in the legal arena have made it a requirement to "VIGOROUSLY" protect their trademarks and copyrights or they will lose them. In the past this "vigor" was not so demanded so they let it slide but with all the problems of piracy, counterfeiting, and infringement, any company has to be more aggressive or they WILL lose their trademark. Much of the problem is to be found in the current insane litigation in the US. Best to blame that than a company for trying to keep what it legitimately owns. I have to "vigorously" protect my trademarks and copyrights, so why shouldn't they?

cat

On Wed, 2 Jun 2004 13:14:49 -0700, "Jon Miller" purred:

Neil Young may own stock in Lionel but he is not on the board and is not any more aware of Lionel's lack of licensing than any other modeler. Just because one owns stock in a company does not mean they have any influence over it or I would have made "Lord of the Rings" instead of Davidson =^-^=. Of course this is a trademark issue rather a copyright one and though they are similar the laws have some striking differences. They enforce intellectual property rights of slightly different sorts in different ways.

cat

I didn't say that UP couldn't protect the trademark, etc. which they actually own. There are several pieces to this puzzle.

1. Fallen flags marks: they bought the roads, killed them off, and never defended the marks before now. MR manufacturers and others have used them for years. The courts may decide that these have passed into the public domain.

1. UP's older marks: same as #1.

2. UP's newer marks: they have every right to defend these and I don't think there is even a question about it. But... They are being heavy handed about it. The income they will derive from the MR industry is trivial compared to their other revenues; they might not even cover their accounting costs. What they should do (in the name of good will) is to let manufacturers apply for permission to use a set of marks, and then only determine that the applicant is a legitimate manufacturer and allow those marks on models, decals and ads: specifically prohibit t-shirts, coffee mugs, et al.

That way, they protect the mark (permission is required), good will is generated, and the costs are small to UP and the manufacturers.

But we'll let the courts decide who owns what, what's in the public domain, and who has to get permission to profit by the marks.

Just my non-legal opinion; the same one I sent to UP investor relations (I'm a stock holder via a transportation fund).

Ed.

in article snipped-for-privacy@4ax.com, cat at snipped-for-privacy@consultant.com wrote on 6/2/04 4:11 PM:

Unfortunately your argument is not germane to the issue in question here. The two defendants are not wrongfully using any property of the Union Pacific Corporation either real or intellectual.

It is highly unlikely that Athearn and Lionel are going to usurp the Union Pacific's business as a common carrier freight hauler. Neither is either company likely to besmirch the "public image" of the company that brought you the Teapot Dome affair. There are ways to protect trademarks, but UP has not availed itself of those ways, but has instead sought to bludgeon the hobby industry for the sins of others. For the UP to lose this suit against Athearn/Horizon and Lionel is the only just conclusion.

Captain Handbrake

I support Union Pacific also, the law is the law. The fee is so small Lionel and Athearn could easily pay it or slightly increase the price. From what Lionel charges and their following pay willingly, a few more dollars and cents won't bother them at all

Why do you think it would be OK to allow the trademarks on models, but NOT on t-shirts or coffee mugs?

Why wouldn't that apply to t-shirts and coffee mugs the same as models?